CHAPTER IV.
LEGISLATIVE POWERS.
WHAT glimpses we have of the earliest assemblies or gemots of England reveal the characteristic powers of ancient Teutonic assemblies, — the exercise of authority over tribal or national affairs, and the combining of judicial with legislative functions. Bede's account of the acceptance of Christianity by the Council of Northumbria, describes the king as consulting its members, each in turn, and giving final decision in agreement with the general voice.[1] The law of Wihtraed reads: "There the great men decreed, with the suffrages of all, these dooms, and added them to the lawful customs of the men of Kent."[2] The prologue of the laws of Ini recounts how "Ini, by the grace of God, king of the West Saxons, with the advice and by the teaching of Cénred my father, and of Hedde my bishop, and Ercenwold my bishop, with all my earldormen and the most eminent Witan of my people, and also with a great assembly of God's servants,[3] have been considering respecting our soul's heal and the stability of our realm, so that right law and right royal judgments might be settled and confirmed among our people,"[4] etc. Alfred, having compiled a body of laws from old sources, declared in their promulgation, "I then, Alfred, king of the West Saxons, showed these to all my Witan, and they then said that it liked them well so to hold them."[5] The judicial action of the assemblies which banished and recalled Wilfrid is narrated by Eddius as proceeding in regular order of accusation, defence and sentence; the bishops and earldormen addressing the gathering, and the judgment being given by the king or ruling earldorman.[6]
Mention of "counsel," "consent," and the like, to be found in legal formularies from early times, indicates this definite relation of the assemblies to legislation. Bede tells how Ethelbert made, "with the advice of his Witan, decrees and judgments."[7] Edmund begins his laws by declaring them to have been established with the counsel of his Witan, ecclesiastical and lay.[8] Edgar ordains "with the counsel of his Witan."[9] Ethelred, in the preamble of the code of 1008, exclaims: "This is the ordinance which the king of the English, with his Witan, both clerical and lay, have chosen and advised."[10]
During the period from Egbert to Edward the Confessor, the powers of the national Witenagemot were very great. It elected kings, and on occasion deposed them. It adopted laws, levied taxes, made treaties of peace and alliance, raised military and naval forces, gave grants of folkland, appointed and removed bishops, earldormen, and other chief ecclesiastical and civil officers, and authorized the enforcement of decrees of the Church. It possessed also the functions of a supreme court of justice.[11] And yet, while exercising all these powers at intervals, the degree of its activity in public affairs varied with different reigns, increasing or diminishing according to the feebleness or the vigour of the sovereign for the time being. By the close of the Saxon epoch the crown had absorbed many of its functions, though its right to advise and consent in the making of laws and in the levy of taxes was ever recognized.
As the Witenagemot survived the Norman Conquest, the same powers must be theoretically regarded as belonging to it after, as belonged to it before, that event.[12] Its feudalization, however, and the vigorous control exercised by the Conqueror and his immediate successors, reduced its efficiency almost to a shadow. Its meetings became infrequent, and the proceedings at them were, in general, devoid of reality. Yet, though minimizing its influence, the Norman kings carefully observed old forms, and professed to act by its "counsel and advice."[13]
With the accession of the Plantagenets, much that had been lost was regained. Henry II. habitually consulted his legislature, laying before it every matter of importance. Richard Cœur de Lion did the same. Even John, in the earlier half of his reign, made formal show of respect for his authorized advisers. And before the time of Henry III., the Council, though still dominated by the royal will, succeeded in turning the nominal assent, that Norman sovereigns had taken for granted, into a genuine consultation, and secured the provision of Magna Charta,[14] that no tax, except three customary feudal aids, should be levied without its consent. Its old right to a share in making the laws became an actuality. Its judicial functions, at least in the case of high offenders, were put in exercise. It dealt with foreign alliances, with the organization of the national defence, and with questions of peace and war. During the absence of the sovereign it practically arranged the regency, and by a series of acts of electing and acknowledging kings, it reaffirmed its ancient privilege of regulating the royal succession. In the Barons' War high claims were made and exceptional powers enforced even against the throne. Attaining under Edward I. its perfected organization of two houses, Parliament attained also, in principle, the essentials of authority which it has ever since claimed. But only by repeated alternations of ascendency over, and subordination to, the crown, did this authority gradually come to be recognized by the king and the nation as a really co-ordinate element in the government. Even Edward, though consulting his full Parliament on grave affairs, put in its place, for much of the ordinary work of administration, his inner or Privy Council, and was slow in admitting the new House of Commons to the rights conceded to the older assembly of the Lords.
The fourteenth century, covering the reigns of Edward II., Edward III., and Richard II., saw much alternation in the political balance. A height of parliamentary influence was reached in the earlier part of the reign of Richard II., when, the king being a minor, the whole executive government was transferred to the two houses.[15] But Richard's later years saw sharp reaction in the direction of uncontrolled royal power — a reaction that was followed in turn by that king's deposition, and the seating of Henry IV. upon the throne, with a parliament-given title. And legislative potency and privilege grew and flourished greatly under the House of Lancaster.
A succession of more serious alternations began with the ascension of the House of York. At first many causes combined to weaken Parliament, which dwindled to a mere instrument for registering the royal will. Its deepest abasement was reached in 1539, when a parliamentary act (13 Henry VIII. c. 8) accorded to individual proclamations of the sovereign all the force of legislative statutes.[16] Not till the reign of Elizabeth did signs of parliamentary revival appear. But stubborn assertion of the old privileges confronted James I., and the attempt of Charles I. to put an extreme royalist philosophy into practice in the teeth of an aggressive Puritan House of Commons, resulted in the overthrow of the throne and the House of Lords together; an overthrow so disastrous, that neither has since fully recovered the place once held in the fabric of the state. In creating a commonwealth, however, the Commons went too far, and at the Restoration the pendulum swung back once more, and a revival of arbitrary executive rule ensued under Charles II. and James II. Nevertheless, the fate of the Stuarts was to promote parliamentary independence by opposing it, and the Revolution of 1688 settled forever the power of the legislature by establishing, beyond further question, the great parliamentary functions.
Thus it came about that under William and Mary, and Queen Anne, the executive and legislative branches of the government enjoyed a mutually independent relation. And although the gradual rise of the Cabinet system into political potency, together with the feebleness of the first two sovereigns of the House of Hanover, prepared the way for changes in the England of to-day by which Parliament has come to control the crown, yet George III. held his own by vigorous assertion of royal influence, and during his reign the balance was maintained and a check given to final and complete parliamentary supremacy. As this particular phase of the long constitutional development, with a distinct executive and legislature, neither dominated by the other, was akin to the theory and practice of executive and legislative relations in the American colonies, and as it was contemporaneous with the period of American independence, it naturally, almost inevitably, left its impress upon the Constitution of the United States.
Having thus briefly reviewed the process by which parliamentary influence was evolved, it will be instructive to take a nearer view of the chief points wherein the American Congress derives its powers from this legislative past.
We cannot do better than begin with a characteristic point of procedure, by examining the origin of bills. In Saxon times, and under the Norman and early Plantagenet kings, legislation was usually initiated by the sovereign, propositions being laid by him before the Council with a view to its advice and consent. But as parliamentary organization approached completion, Parliament itself came to take the initiative, and in the fourteenth century nearly all legislation arose from its petitions to the king.[17] The king's favourable answer gave to petitions the force of statutes. But difficulty was early experienced from evasive, delayed, and otherwise unsatisfactory answers, and from the fact that laws were occasionally placed upon the roll, as acts of Parliament, which, in being turned into statutes under the king's hand had been made to differ materially from the purport of petitions.[18] Parliament put forth successive efforts to prevent such abuses; and to complaints on the subject Henry V. returned answer in 1414 that "nothing be enacted to the petitions of his Commons that be contrary of their asking whereby they should be bound without their assent."[19]
In the next reign a remedy was found in the introduction of completely drawn statutes under the name of Bills — petitiones formam actuum in se continientes.[20] This form of procedure, used at first by the Commons in their grants of money, was eventually applied to all varieties of legislation — bills introduced in either house and agreed to in the other, being sent to the king for his approval or veto without alteration.
The Constitution of the United States perpetuates this usage by providing for the initiation of laws by either house in the form of bills, and by limiting the executive to simple veto or approval. "Every bill which shall have passed the House of Representatives and the Senate, shall, before it becomes a law, be presented to the President of the United States," for his approval or veto.[21]
Each house of Parliament possesses certain privileges peculiar to itself. The chief of these which have made their way into the Constitution of the United States are the judicial rights of the Senate, and the right of impeachment and that of initiating money bills which belong to the House of Representatives. The judicial powers usual to ancient Teutonic assemblies were put in operation, as already stated, by the Witenagemot of England, and eventually descended to the House of Lords. The right of impeachment was employed by the House of Commons as early as 1376 (50 Edward III.); but the nearest approach to the exercise of judicial functions ever made by the lower house was under the form of bills of attainder, which were in reality a species of legislation.[22] Impeachment became an engine of great political power, and though fitfully employed, was never allowed to lapse; the last two cases being those of Warren Hastings in 1788, and of Melville in 1804.[23] In strictly judicial procedure, the Commons were held to be accusers and advocates, and the Lords the judges of the case. The judicial power which at one time lodged in the whole Parliament was declared in 1399, at the suggestion of the Commons themselves, to reside in the Lords only.[24] The Constitution of the United States, following in this the State constitutions of Delaware, Massachusetts, New Hampshire, New York, Pennsylvania, South Carolina, Vermont, and Virginia, gives judicial powers to the upper, and the right of impeachment to the lower, house. "The Senate shall have the sole power to try impeachments. When sitting for that purpose, they shall be on oath or affirmation. When the President of the United States is tried, the Chief Justice shall preside, and no person shall be convicted without the concurrence of two-thirds of the members present."[25] "The House of Representatives ... shall have the sole power of impeachment."[26]
The power to depose the executive himself was claimed by the Witenagemot and by the later Parliament; and the exercise of such a power is attested by several historical examples. By the terms of Article I. of the Constitution, just quoted, the American executive may likewise be removed from his official position by act of the legislature, through a special process of trial.
Another point of interest in the same connection concerns the pardoning power in cases of impeachment. At the trial of Thomas Osborne, Earl of Danby, in 1679, in the reign of Charles II., the defendant claimed the right to implead the king's pardon in bar of a parliamentary impeachment. But the Commons resolved, "that the pardon so impleaded was illegal and void, and ought not to be allowed in bar of the impeachment of the Commons of England."[27] Before the question could be settled, Parliament was prorogued by the king. But in the year following the Revolution of 1688 the Commons again voted, that "a pardon is not pleadable in bar of an impeachment."[28] Finally, it was decided by the Act of Settlement (12 and 13 William III., c. 2), "that no pardon under the Great Seal of England shall be pleadable to an impeachment by the Commons in Parliament." The crown's right to pardon after sentence remains, and has been exercised occasionally, with the effect of nullifying the action of Parliament.[29] But the Constitution of the United States, following the historical spirit, goes beyond the letter of the English usage, by restricting the pardoning power so as expressly to exclude impeached persons. The President "shall have power to grant reprieves and pardons for offences against the United States, except in cases of impeachment."[30]
The right of the House of Commons to initiate money bills dates from 1407. A question on the subject having arisen between the houses, Henry IV. ordained in that year, that the Commons should "grant," and the Lords "assent to," votes of money, which should be reported to the king "by the mouth of the Speaker of the Commons."[31] Subsequent attempts of the House of Lords to encroach upon this privilege were energetically resisted by the lower house. The latter even held that money bills should not be so much as amended by the Lords; and whenever such amendments actually were made, and were thought desirable by the Commons, contest over the point of privilege was avoided by dropping the amended bill altogether, passing a fresh one embodying the purpose of the amendments, and sending it up for the simple assent of the upper chamber. However this might answer as a nominal protection of the privilege, it nevertheless gave force to the Lords' amendments. The right of the Lords "to pass all or reject all without diminution or alteration" was admitted by the Commons in 1671 and in 1689; but the peers seldom put the right into practice. At the period of the formation of the American Constitution it was matter of fresh parliamentary history, that although only the lower house could originate money bills, the Lords were not without practical voice regarding them. The Constitution of the United States provides, in language closely copied from the State constitutions of Massachusetts and New Hampshire, "that all bills for raising revenue shall originate in the House of Representatives; but the Senate may propose and concur with amendments as on other bills."[32] Notwithstanding such specific constitutional authorization, the English traditional spirit of complete restriction as regards this privilege, has manifested itself with singular force and persistency in the American lower house; and the Senate has established the practice of amending money bills, only after great difficulty, and at cost of repeated contests with the Representatives.[33] Privileges anciently possessed by both houses of Parliament equally, and common also to both houses of Congress, are freedom of speech, freedom from arrest, and the right of the chambers to decide contested membership.[34]
The Lords, being abundantly able to defend their rights by force of arms, seem always to have exercised freedom of speech in their own house, unchallenged. But during the first three centuries of the existence of the House of Commons, the Speaker and individual members were frequently proceeded against by the crown for utterances in Parliament. Claims to freedom of speech were early made by the Commons; and the first of the Lancastrians, Henry IV., affirmed the privilege to belong to both houses. In 1541 (33 Henry VIII.) it was named among the rights and privileges claimed from the sovereign at the opening of Parliament.[35] Eighty years later, in 1621, the Commons declared, "that every member hath freedom from all impeachment, imprisonment, or molestation other than censure of the House itself, for or concerning any bill, speaking, reasoning, or declaring of any matter or matters touching the Parliament, or Parliament business."[36] The last instance of the crown's open violation of the right was in the famous prosecution of Sir John Eliot and other members by Charles I., — one of the acts that hastened that monarch's overthrow. The privilege was finally confirmed by the Bill of Rights, the ninth article of which provides, "that the freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament."[37] And, very nearly in this language, it appears in the Constitution of the United States, as belonging to the members of Congress: "For any speech or debate in either house they shall not be questioned in any other place."[38]
The privilege of freedom from arrest and molestation probably dates from the earliest existence of legislative bodies in England. Ethelbert, in a law of the Kingdom of Kent in the sixth century, ordained: "That if the king call his leod (people) to him, and one there do them evil, let him compensate with a twofold bot and fifty shillings to the king."[39] A law of King Canute provided: "That every man be entitled to girth [i.e. freedom from molestation] to the gemot and from the gemot, except he be a notorious thief."[40] Members summoned to the Parliament of later days by the sovereign were supposed to be under his protection. During the reign of Edward I. the legal principle was enunciated, that it was unbecoming for a member of the king's council to be distrained in time of its session;[41] and action of similar purport was taken by Edward II.[42] A statute of 1432 required the punishment of any who should molest comers to Parliament, giving, as in the ancient law of Ethelbert, double damages to the party injured.[43] But notwithstanding the immemorial recognition of the privilege and its repeated enactment in law, frequent contests took place for its enforcement. Immunity was eventually extended to the servants and to the property of members, — an abuse on the side of Parliament. But in 1770, just before the period of American independence, the right was restricted to its ancient limitations, giving freedom from arrest to members only.[44] It has always been restricted to arrest due to civil causes, and has not interfered with the execution of criminal law in cases of "treason, felony, or breach of the peace."[45]
This privilege in its ancient form is found in the Constitution of the United States. "They [the senators and representatives] shall in all cases except treason, felony, and breach of the peace, be privileged from arrest at the session of their respective houses, and in going to and returning from the same."[46]
The right of the House of Commons to decide contested elections of members was not originally looked upon as a privilege of Parliament, and was not fully established as such until the time of Elizabeth.[47] Instances of contact of the Commons with disputed elections occurred in the reigns of Mary, Elizabeth, and James I.[48] The right was recognized by the Court of Exchequer Chamber, 1674;[49] by the House of Lords in 1689,[50] and by the law courts in 1680[51] and 1702.[52] It has been abandoned in our own day, an act having been passed so recently as 1868, providing for trial of election cases by judges of the superior courts of law.[53] But the Constitution of the United States shows the impress of the period of its formation, in the provision: "Each house shall be the judge of the elections and qualifications of its own members."[54]
Amid all the parliamentary privileges, that which has been most modified, and the practical abandonment of which has had the most far-reaching political results, concerns the secrecy of proceedings. The original motive for secrecy of debate was the anxiety of members to protect themselves against the disapproval of the sovereign; but secrecy was found quite as convenient as a cover to hide proceedings from the constituencies. And not until after prolonged struggle, was the right of the electors, and of the public at large, to know what the representatives of the nation were doing in the Parliament virtually conceded.[55] Until recent times the business of legislation in England was conducted with secrecy. Provision for official publication dates from the issue of the "Diurnal Occurrences of Parliament," beginning in 1641, in the time of the Commonwealth. But this was a record of transactions only, and the making public of speeches, except by special leave, was prohibited under severe penalties.[56] After the Restoration, incorrect accounts of transactions having appeared, an act was passed (1680) which stipulated that, under the supervision of the Speaker of the House of Commons, an authorized publication of votes and proceedings should be made, but still without the debates.[57] Nevertheless, what purported to be reports of speeches and discussions occasionally got into the press; and public opinion sided so strongly against Parliament in a contest which it undertook in 1771, that publication of debates, though never formally legalized, has not since been interfered with.[58] This settlement was recent history at the time of the adoption of the Constitution of the United States, which contains a provision on the subject similar in principle to that existing subsequently to 1680 as the law of Parliament, and relates only to congressional action, and not to debate. Since the adoption of the Constitution, however, debates have come to be published, — though the Senate habitually met in secret session during the first years of its existence, and still does so, with more or less frequency. The requirement of the Constitution reads: "Each house shall keep a journal of its proceedings, and from time to time publish the same, excepting such parts as may in their judgment require secrecy."[59]
In the Act of Settlement is a clause to the effect "that no person who has an office or place of profit under the king, or receives a pension from the crown, shall be capable of serving as a member of the House of Commons."[60] This was intended to check the corrupt influence of the executive over Parliament. But the exclusion of all national officers soon came to be regarded as too severe a measure, and the clause was repealed before it came into actual operation.[61] A modified enactment took its place in the reign of Queen Anne.[62] But the evil remained, the crown continuing to exert more or less control by gifts of offices and pensions. Thus, in 1741 two hundred appointments were found in the possession of members of the House of Commons.[63] The Place Bill of 1742 excluded from the House a large number of officials.[64] In 1782, five years before the date of the American Constitution, the Civil List Act brought about further reform of the same character; and the modern system, by which an appointment to office vacates membership in the Commons — with possibility of re-election — may be said to date from the passage of this law.[65] The Constitution of the United States goes somewhat beyond this final stage of English usage, and corresponds more nearly with the spirit of the Act of Settlement. "No senator or representative shall, during the time for which he was elected, be appointed to any civil office under the authority of the United States, which shall have been created, or the emoluments whereof shall have been increased, during such time; and no person holding any office under the United States shall be a member of either house during his continuance in office."[66]
It is needless to consider in detail the full list of congressional powers enumerated in Article I., Section 8, of the Constitution, or to compare these powers with those of Parliament and of the colonial legislatures from which they have been mainly copied or derived.[67] It will be interesting, however, in bringing this chapter to a close, to review the historical development of such fundamental functions as those of supply and accounts, and with them, of the general subject of taxation.
The principle of appropriating the supplies, i.e. voting a sum for specific purposes only, instead of placing it without reserve in the hands of the king, certainly dates back as far as 1353. For a long period it was put into exercise only at rare intervals, but during the Commonwealth the House of Commons gained full control over expenditure, with apparent advantage to the nation. And after the Restoration, the House claimed, and Charles II. conceded, the right of appropriation in the Appropriation Act of 1665.[68] From that time it became an indisputable principle, recognized by frequent, and at length constant, practice, that supplies granted by Parliament are only to be expended for particular objects specified by itself.[69] Since the reign of William and Mary, a clause has been inserted in the annual Appropriation Act, forbidding, under heavy penalties, Lords of the Treasury to issue, and officers of the Exchequer to obey, any warrant for the expenditure of money in the national treasury, upon any other service than that to which it has been distinctly appropriated.
The right of Parliament to audit accounts followed, by natural consequence, the practice of appropriating supplies. So early as 1340 a parliamentary committee was appointed to examine into the manner in which the last subsidy had been expended.[70] Although Henry IV. resisted a similar movement in 1406, he conceded the right in the year following; and audit has since been regarded a settled usage. The two principles are united in a single clause of the American Constitution: "No money shall be drawn from the treasury, but in consequence of appropriations made by law; and regular statement and account of the receipts and expenditures of all public money shall be published from time to time."[7l] Legislative control over taxation bears close relation to the history of Parliament. Though the Witenagemot possessed the undoubted right of consenting to taxes, the right was rarely put in exercise, the royal needs being well supplied in early days by income from royal farms and from what had been the folkland, with such commuted payments of fcorm fultum, or provision in kind, as represented either the reserved rents from ancient possessions of the crown, or the quasi-voluntary tribute paid by the nation to its chosen head.[72] The Norman sovereigns exacted feudal aids and other special varieties of taxation, retaining and adding to the imposts of the Saxon kings. But we have scant evidence as to what extent the consent of the national council was asked by them. Although a tax of the reign of Henry I. is described as the "aid which my barons gave me,"[73] it would appear that until the time of Richard I. the sovereign usually contented himself with merely announcing in assembly the amounts needed, and the reason for his imposing subsidies.
Nevertheless, by the feudal doctrine, the payer of a tax made a voluntary gift for the relief of the wants of his ruler; and under King John, a theory that the promise to pay tax affected only the individual promising created serious complications in the collection of the revenues. Magna Charta provided that, with the exception of three specified feudal aids, no tax should be levied without the assent of a council duly convoked. Increase in the burden of taxation, and its pressure upon all classes of the nation, served to arouse attention to the subject; and the establishment of the representative system in Parliament had its essential origin in the supposed necessity for obtaining the consent, directly or by recognized proxy, of all who were taxed.[74]
After the famous Act Confirmatio Chartarum, in the reign of Edward I.,[75] the exclusive right of the nation to tax itself, through its representatives, became an established principle; though uniformity of practice under it was but gradually attained.[76] Hallam names as one of the settled results of the protracted contest between the crown and the people during the Middle Ages, that "the king could levy no sort of new tax upon his people, except by the grant of his Parliament."[77] The Petition of Right of Charles I. emphatically asserts the principle,[78] and the Bill of Rights of the time of William and Mary finally declares, "that levying money for or to the use of the crown by pretence of prerogative without grant of Parliament for longer time, or in other manner than the same is or shall be granted, is illegal."[79] It is not too much to say, that the principle lies at the foundation of all others in the English constitution, and is a chief source of modern liberties.
It was the alleged violation of this constitutional principle of taxation by consent of the taxpayers, through their elected or acknowledged representatives, that led to the revolt of the colonies in America. The principle appears among the oldest assertions of privilege on the part of the colonists; and declarations on the subject occur in their earliest legislation.[80] The home Parliament had, before the American Revolution, claimed the right to tax the colonies; but the claim had never been admitted on their part, and it had never been carried into effect. Their opposition rested upon the fact, that they were without representatives in Parliament; and when George III. forced an issue, petitions were addressed to the crown, and protests put forth by successive intercolonial congresses, on this specific ground. The Declaration of Independence names, as one of the reasons justifying final separation from England, that of her "imposing taxes on us without our consent."
There is, then, a certain historic fitness in the fact, that first among the powers of Congress enumerated in the Constitution of the United States is the power "to lay and collect taxes."[81] That power finds its proper mention there because of the long and eventually successful struggle in the mother-land over the principle of liberty, that the property of the individual cannot be taken from him in the shape of taxation without his consent, given through his representatives; and because of the further contest over the same principle, which ended in American independence.
[1] Bede, Hist. Eccl., II. 13.
[2] Schmid, Gesetze, 15.
[3] Especially the clergy.
[4] Schmid, Gesetze, 21.
[5] Alfred's Dooms; Thorpe, Ancient Laws and Institutes, I. 58, 59; Freeman, Norman Conquest, I. 53.
[6] Eddius, c. LIX (ed. Gale, 86).
[7] Bede, Hist. Eccl., II. 5.
[8] Schmid, Gesetze, 172, 173, 177.
[9] Ibid. 184-187.
[10] Kemble, Saxons in England, II. 211. "The word ceósan, to elect or choose, is the technical expression in Teutonic legislation for ordinances which have been deliberated upon." — Ibid. 211, n. 7.
[11] "Of the manner of the deliberations or the forms of business we know little, but it is not unlikely that they were very complicated. We may conclude that the general outline of the proceedings was something of the following order. On common occasions the king summoned his Witan to attend him at some royal vill, at Christmas, or at Easter, for festive and ceremonial as well as business purposes. On extraordinary occasions he issued summonses, according to the nature of the exigency, appointing the time and place of meeting. When assembled, the Witan commenced their session by attending divine service and formally professing their adherence to the Catholic faith. The king then brought his propositions before them, in the Frankish manner, and after due deliberation they were accepted, modified, or rejected. The reeves, and perhaps on occasion officers specially designated for that service, carried the chapters down into the several counties, and there took a wed, or pledge, from the freemen that they would abide by what had been enacted." — Kemble, Saxons in England, II. 232, 233.
[12] "As no formal change took place in the constitution of the national assembly, so no formal change took place in its powers." — Freeman, Norman Conquest, V. 280. "It seems to be admitted that the Norman Conquest wrought no formal change in the constitution of the Witan; after the Conquest, the Great Council remains in possession of all the powers of the old Witenagemot. In legal theory, at least, what the Witan was in the days of King Edward, it seems to have remained in the days of King William. In the forms of legislation, change there was none." — Origin and Growth of the English Constitution, 240.
[13] "This immemorial counsel and consent descends from the earliest Teutonic legislation." — Select Charters, p. 18.
[14]M. C. XIV.
[15] Hallam, Middle Ages, III. 59.
[16] "A remarkable example of the way in which Henry VIII. contrived to unite the exercise of practically absolute power with respect for constitutional forms — to play the despot by the co-operation of Parliament — is afforded by the act giving the king's proclamations the force of law. The king having issued certain royal proclamations, the judges held that those who disobeyed them could not be punished by the Council. The king then appealed to Parliament to give his proclamations the force of statutes. This request was complied with, but not without 'many large words.'" — Taswell-Langmead, English Constitutional History, 385.
[17] "The statutes are made by the king with the advice and consent of the lords spiritual and temporal; the petitions are answered 'le roi le veut' or 'le roi s'avisera' with the advice of the lords." — Stubbs, Constitutional History of England, III. 500.
[18] This was a grave matter, and affected the Records of Chancery. In 1404 the Commons complained that a Subsidy Act had been recorded on the Rolls of Chancery in a form contrary to their actual grant, and prayed that their intention in making the grant be declared, and that the Barons of the Exchequer be instructed not to levy the subsidy in its untrue form. — See Clifford, History of Private Bill Legislation, I. 325.
[19] Rot. Parl. IV. 22. This petition is interesting, as the first instance in which the English language was used in petitions by the House of Commons. After asserting the ancient Teutonic principle that no law could be made without their assent, the Commons go on to say: "Consideringe that the Comune of youre lond, the whiche that is, and ever hath be, a membre of youre Parlement, ben as well Assentirs as Peticioners, that fro this tyme foreward, by compleynte of the comune of eny myschief axkynge remedie by mouthe of their Speker for the Comune, other ellys by Petition writen, that ther never be no Lawe made theruppon, and engrosed as Statut and Lawe, nother by addicions, nother by diminucions, by no maner of terme or termes, the whiche that sholde chaunge the sentence, and the entente axked by the Speker mouthe, or the Petitions biforesaid yeven up yn writyng by the manere forsaid, withoute assent of the foresaid Comune. Consideringe oure soverain lord, that it is not in no wyse the entente of youre Comunes, zif hit be so that they axke you by spekying, or by writying, too thynges or three, or as manye as theym lust: but that ever it stande in the fredom of your hie Regalie, to graunte whiche of thoo that you luste, and to werune the remanent." The king, in replying, "of his grace especial graunteth that fro hensforth, no thyng be enacted to the Peticions of his Comune, that be contrairie of hir askyng, wharby they shuld be bounde withoute their assent. Savyng alwey to our liege Lord his real Prerogatif, to graunte and denye what him lust of their Petitions and askynges aforesaide."
[20] Ruffhead's Statutes, I. 16, pref.
[21] See Constitution of the United States, Art. I. Sec. 7. The general procedure of the American Congress is based upon historical antecedents and the experience growing out of congressional life. "The provision that each house may determine the rules of its proceedings, has led to the adoption of two systems, differing widely from each other, in each of the bodies. The main basis, however, on which those rules have been constructed, is Jefferson's Manual, a work prepared by him mainly from the historical precedents in the English House of Commons. These rules have become, by many changes and amendments, very numerous." — Miller, Lectures on the Constitution of the United States, 194, 195. "Parliamentary law" is so familiar in the United States, as governing all public assemblies, that its origin is seldom considered.
[22] "The proceedings of Parliament in passing bills of attainder, and of pains and penalties, do not vary from those adopted in regard to other bills. They may be introduced into either house, but ordinarily commence in the House of Lords. They pass through the same stages, and when agreed to by both houses, they receive the royal assent in the usual form. But the parties who are subjected to these proceedings are admitted to defend themselves by counsel and witnesses before both houses; and the solemnity of the proceeding would cause measures to be taken to enforce the attendance of members upon their service in Parliament. In evil times this summary power of Parliament to punish criminals by statute has been perverted and abused, and in the best of times it should be regarded with jealousy; but, whenever a fitting occasion arises for its exercise, it is undoubtedly the highest form of parliamentary judicature." — May, Parliamentary Practice, ed. 1883, p. 744. "The nearest approach" of the House of Commons to participation in a trial "was made when, in 1283, they were summoned to Shrewsbury on the trial of David of Wales; but they attended merely as witnesses." — Stubbs, Constitutional History of England, II. 270, 271.
[23] From the impeachment of Sir Giles Mompesson and Lord Bacon in 1621, down to the Revolution of 1688, there were about forty cases of impeachment. Among these were the notable impeachments of George Villers, Duke of Buckingham; Thomas Wentworth, Earl of Strafford; Archbishop Laud; and Edward Hyde, Earl of Clarendon. Under William III., Queen Anne, and George I. there were fifteen impeachments; under George III. there was one only, that of Lord Lovat, 1746.
[24] See Rowland, Manual of English Constitution, 457; Hallam, Constitutional History, I. 487 et seq.; I. 508, etc.
[25] Constitution of the United Slates, Art. I. Sec. 3.
[26] Ibid. Art. I. Sec. 2. Though taken from State usage (see Bryce, American Commonwealth, I. 47; Robinson, Publications of American Academy, No. 9, p. 219), yet this part of the Constitution was taken also and consciously from the original English usage, as is made evident by the Federalist (No. 65): "It is not disputed that the power of originating the inquiry, or in other words, of preferring the impeachment, ought to be lodged in the hands of one branch of the legislative body; will not the reasons which indicate the propriety of this arrangement strongly plead for an admission of the other branch of that body to a share of the inquiry? The model from which the idea of this institution has been borrowed, pointed out that course to the Convention. In Great Britain, it is the province of the House of Commons to prefer the impeachment, and the House of Lords to decide upon it. Several of the State constitutions have followed the same example" Seven persons have been impeached in the United States. Of these, five have been acquitted; one a President of the United States, one a Justice of the Supreme Court, one a District Judge, one a Senator, and one a Secretary of War. Two District Judges have been convicted.
[27] Commons Journal, 28 April and 5 May, 1679.
[28] Ibid. 6 June, 1689.
[29] The sentence on Lord Chancellor Bacon was remitted by James I. Indirectly the Commons possess the power of pardoning, by declining to demand judgment after the Lords have found the accused guilty; for judgment cannot be pronounced by the Lords until it is demanded by the Commons. See May, Parliamentary Practice, 9th ed., 739.
[30] Constitution of the United States, Art. II. Sec. 2.
[31] Rot. Parl. III. 611; see also Lords' Report, I. 358, 359.
[32] Constitution of the United States, Art. I. Sec. 7. The debate on this portion of the Constitution in the Philadelphia Convention is full of references to English historical usage. Rutledge, referring in the course of the argument, to members of the Convention who had taken part, says: "They tell us that we ought to be guided by the long experience of Great Britain, and not our own experience of eleven years.... The House of Commons not only have the exclusive right of originating, but the Lords are not allowed to alter or amend a money bill." — Elliot, Debates, V. 419. The English usage was adopted, modified only by the distinct assertion of the right of the upper house to a voice in amendments. Further light upon the action of the Convention in consciously following English examples is supplied by the Federalist: — "The House of Representatives can not only refuse, but they alone can propose, the supplies requisite for the support of government. They, in a word, hold the purse; that powerful instrument by which we behold, in the history of the British Constitution, an infant and humble representation of the people gradually enlarging the sphere of its activity and importance, and finally reducing, as far as it seems to have wished, all the overgrown prerogatives of the other branches of the government." — Federalist, No. 58.
[33] "As we would understand the meaning of the term 'revenue' at the present day, the expression 'bills for raising revenue' would have reference to laws for the purpose of obtaining money by some form of taxation, or other means of raising the necessary funds to be used in supplying the wants of the government, paying its expenses, and discharging its debts. The appropriation of that money, which is always necessarily done by virtue of an act of Congress, would seem to be quite a different thing from the laws prescribing how the money shall be raised. In practice, however, the House of Representatives has insisted that, not only shall it originate all bills of ways and means for raising revenue, for which purpose there is a committee appointed in that body called the 'Committee of Ways and Means,' but it has also claimed that all the appropriation bills, and especially the annual appropriation bills, which are prepared each year to meet the current expenses of the government during the succeeding fiscal year, shall originate in that body; and it has, therefore, a standing 'Committee on Appropriations.' This has been the practice now for so long a time that it may be doubted whether it will be seriously questioned. The Senate, however, has never given its full consent to this proposition, but has, on the contrary, from time to time originated bills appropriating money for specific purposes; although it is not believed that it has for a great many years attempted to act upon any of the general appropriation bills until they have been sent to that body from the House.... It is difficult to see, under this clause of the Constitution, how it is, when no new law is necessary to raise revenue, that the act appropriating or directing how the revenue already raised ... shall be appropriated can be properly called a bill for raising revenue. Undoubtedly the adoption of this article into the Constitution, and the construction which has been given to it, is the result of the practices of our English ancestors." — Miller, Lectures on the Constitution of the United States, 204, 205.
[34] Sir Erskine May, in Parliamentary Practice, gives historical and legal information as to the various branches of parliamentary privileges. The phrase "privilege of Parliament" has much wider meaning than formerly.
[35] Rot. Parl. 33 Hen. VIII.
[36] Hatsell, Precedents, I. 79.
[37] 1 Will. and Mary, Sess. 2, c. 2. See, on the general subject, May, Parliamentary Practice, 118-123.
[38] Constitution of the United States, Art. I. Sec. 6.
[39] Ethelbert, § 1; Select Charters, p. 61.
[40] Canute, § 83; cf. Edward Conf. § 2; Select Charters, 74; Thorpe, Ancient Laws and Institutes.
The same freedom to persons attending upon ecclesiastical synods was granted by Edward the Confessor. — LI. Edward Conf. Art. 2, cl. 8. The law provides, "ad synodos venientibus, sive summoniti sint, sive per se quid agendum habuerint, sit summa pax."
[41] Rot. Parl. I. 61.
[42] Hatsell, Precedents, I. 12.
[43] Stat. 11 Hen. VI. c. 11; Statutes, II. 286; Rot. Parl. IV. 453.
[44] 10 Geo. III. c. 50. Several previous statutes had restrained the evil in part: 12 and 13 Will. III. c. 3; 2 and 3 Anne, c. 18; II Geo. II. c. 24.
[45] Taswell-Langmead, English Constitutional History, 328.
[46] Constitution of the United States, Art. I. Sec. 6.
[47] D'Ewes, Journal, 393.
[48] Com. Jour., 1 Mary, 27; Hallam, Constitutional History, 7th ed., I. 275; Parliamentary History, I. 967.
[49] Barnardiston v. Soame, 6 Howell, St. Tr. 1092.
[50] Ibid. 1119.
[51] Onslow's Case, 2 Ventris, 37.
[52] Prideaux v. Morris, 2 Salkeld, 502. The further act, 7 Will. III. c. 7, provided that "the last determination of the House of Commons concerning the right of election is to be pursued."
[53] 31 and 32 Vic. c. 125.
[54] Constitution of the United States, Art. I. Sec. 5. This is a singular illustration of the fact, that some old English usages which have been abandoned in the mother-country, still survive in the United States.
[55] English Constitutional History, 149.
[56] Sir Edward Dering, of Surrenden Dering, printed a collection of his own speeches without leave, and for this offence was expelled from the House of Commons, and imprisoned in the Tower of London; and his book was ordered to be burnt by the common hangman. Com. your., II. 411, February 2, 1641.
[57] Com. Jour., IX. 74.
[58] Cobbett, Parliamentary History, XVII. 59-163.
[59] Constitution of the United States, Art, I. Sec. 5.
[60] 12 and 13 Will. III. c. 2., III. 6.
[61] 4 Anne, c. 8, s. 25
[62] 6 Anne, c. 7.
[63] Lords' Protests, 1741.
[64] 15 Geo. II. c. 22.
[65] Lord Rockingham's Civil List Act, 22 Geo. III. c. 82.
[66] Constitution of the United States, Art. I. Sec. 6.
[67] Congress alone has the right to declare war; and seemingly this is a departure from the usage of the English Parliament at the time the Constitution was adopted. But the ninth article of the ordinances of 1311 required that "the king henceforth shall not go out of his realm, nor undertake against any one deed of war without the common assent of his baronage, and that in Parliament." — Statutes, I. 59. "The right to be consulted in war and peace, which the Commons had established under Edward III., and maintained under Richard II., was extended under the Lancastrians, so as to include all questions of national interest." — Taswell-Langmead, English Constitutional History, 321. Any examination in detail would reveal the fact that the powers of Congress are really a modification or adaptation of those of the colonial legislatures and of the English Parliament. Congress has not a supreme position, such as Parliament has. But its construction as a legislature having constitutional limitations is taken from the State legislatures, which were limited by the State constitutions; and back of these, from the colonial legislatures, which were limited by the colonial charters and, to some extent, by the supremacy of the home Parliament. Of course, the differences between national conditions in the United States and in England have introduced many American peculiarities.
[68] 17 Car. II. c. 4.
[69] Hallam, Constitutional History, II. 355, 356.
[70] Rot. Parl., II. 130.
[71] Constitution of the United States, Art. I. Sec. 9.
[72] Stubbs, Constitutional History of England, I. 317.
[73] "Auxilium quod barones mihi dederunt." — Chron. Abingd., II. 113.
[74] "The rudimentary form of the principle that representation should accompany taxation, gained ground after the practice arose of bringing personal property and income under contribution." — Stubbs, Constitutional History of England, I. 648.
[75] 25 Edw. I., St. I. c. 6. Although a statute, the Confirmatio Chartarum is drawn up in the form of a charter. It passed Parliament, October 10, 1297.
[76] For a time the Estates of the realm assented to taxes separately, and each with a separate quota. This custom gradually ceased.
The last instance of it was in the eighteenth year of Edward III. "In later reports both houses are mentioned, in conjunction with the observation 'that they have advised in common.'" — Gneist, English Parliament, 137, Shee's trans.
[77] Constitutional History, I. 2. "The dependence of supplies on the redress of grievances originated under Richard II. It had previously been usual for the king not to answer petitions until the last day of the session, when the supplies had, of course, been granted. The attempt to invert this order of proceeding had been declared by Richard II.'s judges to be high treason. But in the 2d of Henry IV. the Commons again endeavoured to secure this important lever for the application of parliamentary power. The king resisted firmly, and the Commons gave way for the time, but the practice gradually gained ground." — Taswell-Langmead, English Constitutional History, 312. As early as 1309, the Commons granted a subsidy "upon this condition, that the king should take advice and grant redress upon certain articles wherein they are aggrieved." — See Prynne, 2d Register, 68. For a case involving a similar principle of early date, see Parliamentary Writs, I. 105.
[78] 3 Car. c. 2, s. I.
[79] 1 Will. and Mary, Sess. 2, c. 2.
[80] In Plymouth, Massachusetts Bay, Virginia, Maryland, New York, and generally. See Story, Constitution, I. 116.
[81] Constitution of the United States, Art. I. Sec. 8. A limitation as to appropriations occurs in this section of Article I.: "No appropriation of money" for the support of armies, "shall be for a longer term than two years." "The clause," as Robinson remarks, "bears an obvious analogy to the custom in England." — Publications of the American Academy, No. 9, p. 220. See also Federalist, No. 61.
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